dissenting.
It is my belief that regardless of how offensive we may deem it, numerous decisions of the United States Supreme Court tell us that the movie, “Southern Comforts,” is constitutionally protected, in so far as it is shown only to adults desirous of seeing it.① However, the majority, by affirming this conviction for disseminating obscene matter under a statute, former *125OES 167.151, which is no longer the law of Oregon, may, I fear, be sending the state on its way toward a replay of State v. Childs, 252 Or 91, 447 P2d 304 (1968), cert denied 394 US 931 (1969). The course of that ease is vividly described in D. Eeno, Jr., Obscenity Revisited —1972, American Bar Association Journal, July 1972, 736 at 739:
“The frustration and expense of protracted obscenity litigation is most appropriately portrayed *126by a case prosecuted in Oregon. Tbe defendant was convicted in tbe trial court for selling obscene materials, and tbe Oregon Supreme Court affirmed tbe conviction (447 P. 2d 304). The United States Supreme Court denied certiorari (394 U.S. 931). The defendant then instituted a federal habeas corpus proceeding, and tbe Oregon federal district court found that the materials were not obscene (300 F. Supp. 649). Oregon then appealed to the Ninth Circuit Court of Appeals, which reversed the district court and held the materials were obscene (431 F. 2d 272). Exhausting his last appellate remedy, the defendant filed another petition for certiorari with the United States Supreme Court. This time the Supreme Court granted certiorari, reversed the Ninth Circuit and per curiam held the materials constitutionally protected, citing Redrup (401 U.S. 1006).
“During the course of the litigation, a three-judge federal district court declared the Oregon *127obscenity statute [former ORS 167.151] unconstitutional (321 F. Supp. 642) [Hayse v. Van Hoomissen, 321 F Supp 642 (D Or 1970), vacated on other grounds, 403 US 927, 91 S Ct 2248, 29 L Ed 2d 705 (1971)], in spite of the statute’s having passed constitutional scrutiny two years earlier by the Oregon Supreme Court.”
It seems to me that the United States Supreme Court has held that the pictorial or verbal portrayal to consenting adults, of nudity and sexual activity, of the type with which we are here concerned, both “normal” and “abnormal,”② is a constitutionally protected form of expression. See, n 1, supra. This is my understanding of what we were holding in State v. Oregon Bookmark Corp., 7 Or App 554, 492 P2d 504 (1972), where we said that magazines which portrayed nudity, and implied various forms of sexual activity at least as specifically as does “Southern Comforts” were constitutionally protected.
The key words are “consenting adults.” In Redrup v. New York, 386 US 767, 769, 87 S Ct 1414, 18 L Ed 2d 515, rehearing denied, 388 US 924 (1967), the Supreme Court clearly indicated that it would countenance much more restrictive standards in statutes governing sexual material if such statutes “reflected a specific and limited state concern for juveniles” and a concern for “* * * assault upon individual privacy *128by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.” In Rabe v. Washington, 405 US 313, 92 S Ct 993, 31 L Ed 2d 258 (1972), the Supreme Court reiterated this doctrine.
In reaching the conclusion that even consenting adults cannot see “Southern Comforts,” the majority invokes the ill-defined standards that were incorporated into former ORS 167.151. The problems produced by courts trying to sit as censors to subjectively determine what material is patently obscene under these elastic standards illustrate the practical wisdom of the 1971 legislative assembly in repealing former ORS 167.151 and replacing it with Oregon’s new obscenity laws. No longer are the Oregon courts called upon to make the unseemly and fruitless “I-know-it-when-I-see-it” type of determination. Under the new obscenity laws there are explicit statutory definitions that avoid these problems. See, ORS 167.060. Under these definitions, a display of “Southern Comforts” to an unmarried minor under 18 years of age would clearly be a crime. ORS 167.065(1) (a). As stated in Obscenity Revisited — 1972, supra, at p 739:
“A review of these cases [the United States Supreme Court decisions above referred to and others] by the Oregon legislature could only have reflected that the prosecution of abstract principles concerning obscenity requires too much expense, time and judicial ado [to no avail — see, Childs v. Oregon, 401 US 1006, 91 S Ct 1248, 28 L Ed 2d 542 (1971)]. Consequently, the legislature enacted an innovative approach to controlling the commercialization of explicit sexual materials * *
For the foregoing reasons, I respectfully dissent.
See, Bloss v. Michigan, 402 US 938, 91 S Ct 1615, 29 L Ed 2d 106 (1971); Cain et al v. Kentucky, 397 US 319, 90 S Ct 1110, 25 L Ed 2d 334, rehearing denied, 397 US 1081 (1970); Schackman et al v. California, 388 US 454, 87 S Ct 2107, 18 L Ed 2d 1316 (1967); Jacobellis v. Ohio, 378 US 184, 84 S Ct 1676, 12 L Ed 2d 793 (1964); Kingsley Pictures Corp. v. Regents, 360 US 684, 79 *125S Ct 1362, 3 L Ed 2d 1512 (1959); Times Film Corp. v. Chicago et al, 355 US 35 (1957).
The movie held to be constitutionally protected in Times Film Corp. v. Chicago et al, supra, was described by the lower court in these terms:
“The film, as an exhibit in this case, was projected before and viewed by us. We found that, from beginning to end, the thread of the story is supercharged with a current of lewdness generated by a series of illicit sexual intimacies and acts. In the introductory scenes a flying start is made when a 16 year old boy is shown completely nude on a bathing beach in the presence of a group of younger girls. On that plane the narrative proceeds to reveal the seduction of this boy by a physically attractive woman old enough to be his mother. Under the influence of this experience and an arrangement to repeat it, the boy thereupon engages in sexual relations with a girl of his own age. The erotic thread of the story is carried, without deviation toward any wholesome idea, through scene after scene. The narrative is graphically pictured with nothing omitted except those sexual consummations which are plainly suggested but meaningfully omitted and thus, by the very fact of omission, emphasized * * Times Film Corporation v. City of Chicago, 244 F2d 432 at 436 (7th Cir 1957).
The movie held to be constitutionally protected in Cain et al v. Kentucky, supra, was described by the lower court in these terms:
“* * * The film is a 90-minute motion picture devoted almost entirely to the sexual encounters of one female by the name of Eve. It opens by showing Eve nude in her bedchamber engaged in the practice of caressing herself in a suggestive manner to the accompaniment of her father’s violin. She progresses to a passionate love scene with her fiance, Svend, while lying fully clothed on top of him in her *126bedchamber. This act is performed with the camera full on the subject. From this the film proceeds to the act of intercourse with a married patient, Heinz Goertzen, in a hospital room where Eve is employed as a nurse. This act she solicits with the use of nude photographs taken of her by her fiance for this specific purpose. During the course of the sequence, the camera focuses upon the head of the male partner and the stomach area of the female partner. It shows the male partner caressing with kisses the area between the navel and the pubic hair. The camera then shifts during the act of intercourse to the face of the female subject. After this, the film follows the life of Eve from one act of sexual intercourse to another until it has been accomplished some five times, all with different partners. Each time the act is as vividly portrayed upon the screen as was the scene in the hospital room. In one instance the sex act is in the form of rape. The film represents nothing more than a biography of sexuality. There is no story told in the film; it is nothing more than repetitious episodes of nymphomania. Nudity is exposed in such manner that if the subject had posed in person instead of on film she would have immediately been arrested for indecent exposure.” Cain v. Commonwealth, 437 SW2d 769 at 774-75 (Ky 1969).
The constitutional protection of movies is not confined to the expression of ideas that are conventional or shared by a majority. Kingsley Pictures Corp. v. Regents, supra (movie that possibly advocated adultery held constitutionally protected); see also, Manual Enterprises v. Day, 370 US 478, 82 S Ct 1432, 8 L Ed 2d 639 (1962) (magazines with pictures of nude males admittedly for sale to homosexuals held constitutionally protected); One, Incorporated v. Olesen, 355 US 371 (1958), rev’g One, Incorporated v. Olesen, 241 F2d 772 (9th Cir 1957) (magazine story describing lesbian activity held constitutionally protected).